Judicial Activism and Progressive Legislation: A Step towards Decreasing Hate Attacks

By Bantley, Kathleen A. | Albany Law Review, Spring 2008 | Go to article overview

Judicial Activism and Progressive Legislation: A Step towards Decreasing Hate Attacks


Bantley, Kathleen A., Albany Law Review


I. INTRODUCTION

Over the last several years, the issue of gay and lesbian rights has been a political hot topic. The area that has drawn the most attention lately is in the realm of civil unions and marriage. Vermont and Connecticut have passed civil union legislation increasing the rights of gays and lesbians. (1) Massachusetts went one step further. It actually permits gay marriage. In 2003 the Massachusetts Supreme Judicial Court (SJC), in Goodridge v. Department of Public Health, ruled that the state's constitution does not prevent same-sex couples from marrying. (2) In the wake of the SJC's opinion, the Massachusetts legislature introduced possible constitutional amendments defining marriage as between a man and a woman only. (3) In the meantime, same-sex couples began to marry starting in May 2004. (4) By December 2005 a total of 7,341 same-sex couples had been married in Massachusetts. (5)

Other states have done the opposite. They have limited the rights of gays and lesbians by passing amendments to their state constitutions, which define marriage as between a man and woman only. (6) This makes it virtually impossible for homosexuals to be on equal footing with their heterosexual counterparts.

This Article focuses on the impact that judicial decisions, such as the Goodridge opinion, and legislative acts increasing the rights of gays and lesbians have on "hate crimes." In determining this impact, the Article will examine the historical treatment of gays and lesbians and anti-gay violence. It will also look at heterosexism and the Defense of Marriage Act, hate crime legislation, hate crime statistics, and hate attacks nationally and specifically in Vermont and Massachusetts.

II. HISTORICAL TREATMENT OF GAYS AND LESBIANS

Gays and lesbians in the United States, historically, have not been treated well. Starting as early as the colonial era, one could be executed by the government for sodomy. (7) By the mid-twentieth century, the medical profession began considering homosexuality a mental illness. (8) As such, many gays and lesbians were in fear of being institutionalized. (9) In the 1940s and 1950s, the federal government started to openly treat homosexuals adversely. (10) Congress dealt with homosexuals through the House UnAmerican Activities Committee and the Senate's McCarthy Hearings. (11) Homosexuals were considered a national menace, a threat to national security, and a threat to the stability of the country. (12)

Congress, however, was not the only branch of the federal government that treated homosexuals poorly. President Dwight Eisenhower "issued an executive order listing 'sexual perversion' as disqualifying anyone from a federal job." (13) This prompted J. Edgar Hoover and the FBI to lead a "national crackdown" on outing homosexuals. (14) At that time, the federal government was the nation's largest employer. (15) It was believed that homosexuals were easy targets of blackmail and could be coerced into revealing national secrets or joining the communist party. (16)

As a result of this crackdown, it became open season on homosexuals. This overt discrimination by the federal government led to more and more private discrimination. Private employers followed Eisenhower's lead and started firing anyone they believed was homosexual. (17) In addition, police across the country started to act as if they had been given a '"no-holds-barred' signal to harass, abuse and arrest homosexuals." (18) They would blackmail, entrap, and commit other abuses on them. (19) The police traditionally have been violators of gay and lesbian civil rights. (20) As such, attacks on gays and lesbians had gone unreported because victims actually experienced or perceived the police to be anti-gay. (21) This was the climate and the catalyst for the Stonewall Riots of 1969. (22) During these riots, members of the gay community fought back against the New York City Police who were constantly harassing patrons of gay bars. …

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